Court File and Parties
Court File No.: CV 16-552834 Date: 2017-06-15 Superior Court of Justice - Ontario
Re: GRAND CHIEF MATTHEW COON COME, Grand Chief and Chairman of the Grand Council of the Crees (Eeyou Istchee) and the Cree Nation Government, suing on his own behalf and on behalf of all members of the Cree Nation of Eeyou Istchee, THE GRAND COUNCIL OF THE CREES (EEYOU ISTCHEE), THE CREE NATION GOVERNMENT (formerly THE CREE REGIONAL AUTHORITY), THE CREES OF THE FIRST NATION OF WASKAGANISH, THE CREE FIRST NATION OF WASWANIPI known as the Waswanipi Band pursuant to the Cree-Naskapi (of Quebec) Act , THE CREE NATION OF NEMASKA, THE CREE NATION OF EASTMAIN, THE CREE NATION OF WEMINDJI, THE CREE NATION OF MISTISSINI, THE OUJE-BOUGOUMOU CREE NATION, THE CREE NATION OF CHISASIBI, THE WHAPMAGOOSTUI FIRST NATION and PAULINE TRAPPER-HESTER, Chief of the CREE NATION OF WASHAW SIBI, suing on her own behalf and on behalf of all members of Washaw Sibi Eeyou
And: THE ATTORNEY GENERAL OF CANADA, THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
Before: Lederer J.
Counsel: Jessica Orkin, Cassandra Porter, for the Plaintiffs James O’Reilly, for the Respondent Plaintiffs Julian N. Falconer, Meaghan T. Daniel, for the Proposed Intervener/Moving Party Nishnawbe Aski Nation (NAN) Michael McCulloch, for the Defendants, Attorney General of Canada and the Minister of Indian Affairs and Northern Development Lisa La Horey, Richard Ogden, for the Defendant, Her Majesty the Queen in Right of Ontario Philip Tunley, Benjamin Kates, Katherine Hensel, for the Moving Party, Moose Cree First Nation
Heard: June 5 and 6, 2017
Endorsement
[1] This is a difficult and unfortunate circumstance.
[2] At its root, and with a larger perspective, this case considers reconciliation between those of us who are the descendants of settlers or immigrants and our First Nations. This is a complex and complicated problem. Reconciliation has been described as:
…[A]n ongoing process of establishing and maintaining respectful relationships. A critical part of this process involves repairing damaged trust by making apologies, providing individual and collective reparations, and following through with concrete actions that demonstrate real societal change. [1]
[3] Typically, we address this concern as having two sides. This case has been structured on that foundation. It is a lawsuit brought by First Nations against the Crown as represented by the Attorney General of Canada, the Minister of Indian Affairs and Northern Development and Her Majesty the Queen in Right of Ontario.
[4] The plaintiffs, identified collectively as the Cree Nation of Eeyou Istchee, are a grouping of a number of Cree nations. They claim both Aboriginal title and rights over a significant area of land located in Ontario, generally along its northern border with the province of Quebec proceeding south from Hannah Bay, the southern extension of James Bay. The Cree Nation of Eeyou Istchee seeks a declaration recognizing that title, the breach of those rights and damages.
[5] There are other First Nations which claim rights to parts of the same area. Like the Cree Nation of Eeyou Istchee, these First Nations say the Aboriginal title and rights are theirs. In response the Cree Nation of Eeyou Istchee amended its Statement of Claim. While it continues to seek “exclusive use and occupation” of the lands, it says it does so “without prejudice to any existing rights other Aboriginal peoples may hold with respect to these lands.” [2] As I understand it the Cree Nation of Eeyou Istchee is not conceding that it does not have exclusive rights; it is simply acknowledging that it may not, leaving it to other First Nations to come forward and make their own claims when and if they chose to do so. The underlying proposition is that the Cree Nation of Eeyou Istchee, through this action, is out to prove the validity of its claims and have them recognized. The Cree Nation of Eeyou Istchee submitted that the idea that there can be more than one holder of the contested rights is accommodated by “the established doctrine of shared or joint Aboriginal title.” [3]
[6] In short, this proceeding would permit the Cree Nation of Eeyou Istchee to establish its claim to Aboriginal title and rights as well as any damages arising from the breach of that title and those rights. Should others make coincident claims it may be that the Cree Nation of Eeyou Istchee will oppose them but if other claims are proved they will share the title and the rights. The problem is in the acknowledgment that other First Nations may have such claims. At least one of those other First Nations says that it has a claim to “exclusive aboriginal title”. There are at least seven other First Nations who may make the same claims. By those who do, the Cree Nation of Eeyou Istchee is said, in effect, to be an interloper. These other First Nations were not named as parties. If the Cree Nation of Eeyou Istchee obtains rights as a result of a judgment of this court it will be difficult, if not impossible, for the others to obtain the exclusive title and rights they may claim. There will be a decision of this court to the contrary.
[7] The court has before it two motions to intervene.
[8] Before reviewing the motions I return to the comment found at the outset of this endorsement. As this action begins we are not dealing with reconciliation between the Crown and First Nations. These motions reflect a disagreement between First Nations. Which of them should properly be parties to this action and on what, if any, terms? Which of them have valid claims to aboriginal title and rights? In the absence of agreement between these First Nations this is, and with orders to intervene being made, will remain a multi-lateral instead of a bi-lateral dispute. It does not take much to see that this will complicate the process. Nonetheless, it appears that the parties are prepared to proceed on this basis. On behalf of the court, I am less sanguine that this approach can work in an efficacious and effective way.
[9] The first motion is brought by the Moose Cree First Nation. This is the First Nation identified as claiming exclusive rights to a portion of the area of land that is the subject of the action. “After having considered [Moose Cree First Nation’s] submissions and argument on this motion” [4] the plaintiff has conceded that it should be granted leave to intervene as a party to this action, either as a necessary party (r. 5.03) of the Rules of Civil Procedure [5] or as an added party (r. 13.01). Even so, the plaintiff, regardless of the rule relied on, insists that the intervention be subject to conditions limiting the participation of the Moose Cree First Nation to those aspects of the proceeding that “…engage its asserted interests.” [6]
[10] I will return to the question of conditions.
[11] The second motion is not brought by a band claiming any territorial rights. The proposed intervenor is the Nishnawbe Aski Nation, a “political territorial organization” [7] made up of 49 First Nations including “…all the signatories of Treaty #9” [8] . Treaty #9 was made during the summers of 1905 and 1906. The parties to the treaty are the Dominion of Canada, the Province of Ontario and a significant number of First Nation members and bands. Treaty #9 deals with lands within the boundary of what is now the Province of Ontario to the north of the divide that separates the waters that flow north to James Bay from those that flow south particularly to Lake Superior. In this case the watershed may be described, generally, as those waters flowing north from Quebec, across the north part of its border with Ontario draining into Hannah Bay. Treaty #9 includes the lands which are the subject of the claims being made in this proceeding.
[12] There was opposition to this motion.
[13] The Moose Cree First Nation submitted that it was premature. The Nishnawbe Aski Nation was not asking to be joined as a necessary party pursuant to r. 5.03 [9] but as an added party under r. 13.01 [10] . It is known that there are nine member Nations who have claims to land within the disputed area, presumably, though it is not yet clear to me, confirmed by or arising from the provisions of Treaty # 9. The Moose Cree First Nation is one of the nine; as is MoCreeBec, identified by some as a First Nation and by the Moose Cree First Nation as a community albeit one occupying part of the Moose Cree First Nations ancestral lands. While not part of the plaintiff group, I am advised that MoCreeBec would benefit from the plaintiffs’ success in this action. The Nishnawbe Aski Nation made clear that although MoCreeBec is one of its members it has recused itself from any consideration, by the Nishnawbe Aski Nation, of this action or the group’s prospective participation in it. The remaining seven of the nine members who have territorial claims are not presently represented. I am told by counsel for the Nishnawbe Aski Nation that he has advised representative of each of the seven of this action and these motions. Their absence as individual parties demonstrates they have chosen, at least for the time being, not to seek status either as a necessary party or an added party. It would seem, they are prepared, in some fashion, to rely on the motion being brought on behalf of the Nishnawbe Aski Nation and any role it may play as the action proceeds. The Nishnawbe Aski Nation has no territorial rights. It can make no claim for aboriginal title or rights. After some debate it became apparent that it does not ask to be joined on that basis. In the manner described by the rules it is not asking to be joined as a necessary party (r. 5.03) but as an added party (r. 13.01). The test is different. This being so, counsel for the Moose Cree First Nation submitted that I should hear only the motion of his client to be joined as a necessary party. Given the concession that it is a proper party that motion would be granted, perhaps subject to terms as sought by the plaintiff, perhaps not. Each of the seven members of the Nishnawbe Aski Nation who have territorial claims and whose interest is not presently before the court would, then, know the terms on which they could expect to obtain such status. This assumes their claims are similar to those of the Moose Cree First Nation. As Counsel for the Moose Cree First Nation sees it, they should be given a further opportunity to consider whether each of them wishes to intervene as a necessary party. The motion of the Nishnawbe Aski Nation should be adjourned.
[14] I determined to hear each of the motions. The date for their hearing had been set for some time. The proceeding has been and is the subject of case management. The issue, as put, was not raised between counsel until the weekend before the scheduled date, a Monday. The point of case management is to avoid last minute proposals for adjournment and delay. In this case the seven First Nations involved have been advised of the situation and each has made their choice. There is nothing to stop any or all of them from seeking to be joined later in the proceeding. Should that occur the fact that they were aware of the possibility at this time will undoubtedly be brought to bear on the motion and any terms that may be set if intervention is ordered. As much as I have expressed my concern to counsel that the court have before it the parties necessary to allow it to have the insight and information necessary to make a proper decision, we cannot allow these extended proceedings to get lost in process.
[15] The decision having been taken to proceed with hearing the motion of the Nishnawbe Aski Nation to intervene, counsel for the Moose Cree First Nation took no further position as whether it should be granted. The Moose Creek First Nation would still prefer the motion be set aside for a time once a decision has been made as to the conditions, if any, to be applied to its own participation.
[16] The Cree Nation of Eeyou Istchee also opposed the motion of the Nishnawbe Aski Nation to intervene. It took the position that the authority necessary to represent individual First Nations in an action where a title claim was being made had not been obtained. Moreover, the issue in which interest was proclaimed, being the impact and interpretation of Treaty #9, was irrelevant given the concession that, with proof, the plaintiff would accept shared or joint title.
[17] The authority on which the Nishnawbe Aski Nation appeared and asked to intervene is a resolution of the assembly of the Chiefs of its members passed on February 1, 2017. [11] The resolution directed that the executive of the Nishnawbe Aski Nation seek intervenor status and oppose the claim of the Cree Nation of Eeyou Istchee. This did not give the Nishnawbe Aski Nation the authority to claim any territorial title or rights. As explained by counsel for the plaintiff, the authority to bring a substantive claim for rights to territory belongs to the “collective” (the band or nation) making the claim. The way in which this is established varies. It depends on the status and standing on the particular First Nation. If the First Nation is one that is recognized under the Indian Act [12] the necessary authority would come through a vote of the council of the First Nation. As has already been noted, the Nishnawbe Aski Nation does not seek to establish a claim for territorial title or rights. It seeks instead to be added as a party pursuant to Rule 13.01, that is a party with an interest in the subject matter, that may be adversely affected by the claim being made or as a person who shares a question of law or fact with one or more of the parties that is common with an issue in the proceeding. In taking this position the Nishnawbe Aski Nation relied on Peel (Regional Municipality) v. Great Atlantic and Pacific Co. of Canada [13] :
[T]he matters to be considered are the nature of the case, issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties. [14]
[18] In furtherance of this position the Nishnawbe Aski Nation referred to and relied on the interests of its members:
These member communities not only hold the claimed area as ancestral and traditional territory, but as lands reserved to each band under the Indian Act . Further, the territory under claim includes lands recognized to be under the inherent authority of [ Nishnawbe Aksi Nation ’s] member communities by the words and oral promises of Treaty #9, and as recognized and affirmed by s. 35 of the Constitution Act, 1982. [Nishnawbe Aksi Nation] member communities have historical and contemporary presence, occupation, and use in and of the claimed area. They hold the land as a matter of their own systems of law and authority and have maintained an ongoing connection from time immemorial to the present day. [15]
[19] These ideas reflect on territorial claims to title and rights of use and occupation (hunting and fishing) which it was acknowledged belong with the individual members of the Nishnawbe Aski Nation and the collective groups of First Nation members they each represent. In its submissions Nishnawbe Aski Nation proposed a more general interest and concern. It pointed to its history of concern for the interpretation and application of Treaty #9. The Nishnawbe Aski Nation describes its past and continuing interest in “any judicial determination that would give meaning, implicitly or explicitly, to the terms of Treaty #9, which [it says] are the subject of significant controversy”. [16] The Nishnawbe Aski Nation filed a Motion Record. It includes an affidavit sworn by the Research Director of its Land, Rights and Treaty Research Unit. This unit, formed in 1984, is a mandated “to carry out research on claims and other matters on behalf of [the members of the Nishnawbe Aski Nation] and to continue the various projects in Treaty No. 9 and Treaty No. 5”. [17] The Lands, Rights and Treaty Research Unit “is responsible for conducting research and development of all specific claims within the [Nishnawbe Aski Nation] region.” [18] Its responsibilities include: “conducting historical research, preparation of historical reports, factual/statistical analysis, submissions of claims to Government on behalf of member First Nations and collecting and indexing documentary evidence from a variety of sources.” [19]
[20] The affidavit refers specifically to work undertaken with respect to the diaries of the three commissioners who acted on behalf of the Crown (both the province and the federal government) in the making of Treaty #9.
[21] From this the Nishnawbe Aski Nation submitted that it has demonstrated a substantive and continuing interest in, not only the interpretation of Treaty #9, but on the broader assistance the context its time and preparation can bring to bear on the title, rights, occupation and use of the lands within its boundaries. Any decision made by the court will impact future determinations and have the potential to adversely impact its members. With this background the Nishnawbe Aski Nation believes it has a role to play in filling out the record that will be placed before the court and legal argument to present that will assist the court in coming to whatever decision it may make. It is on this basis that the Nishnawbe Aski Nation asks to intervene as an added party.
[22] The Cree Nation of Eeyou Istchee says that the intervention should be refused. There is nothing in the request that demonstrates the quality of interest required. The Nishnawbe Aski Nation, in its own right (as distinct from its individual members), has no direct interest that would warrant intervention. As perceived by the Cree Nation of Eeyou Istchee the interpretation of Treaty #9 has no role to play in this proceeding. It has been made irrelevant by the concession that its terms may lead to title and rights but if they do, any claim made in this action by the Cree Nation of Eeyou Istchee is without prejudice to those rights. The broader context has no impact on the claim and, in any event is not referred to or relied on in the record the Nishnawbe Aski Nation has placed before the court. The Cree Nation of Eeyou Istchee went on to submit that in the event that the court was inclined to allow for the intervention of Nishnawbe Aski Nation it should do so pursuant to r. 13.02 (friend of the court) rather than under r. 13.01 (an added party). In doing so the Cree Nation of Eeyou Istchee referred the court to Canada Post Corp. v. Kelly Mail Canada Inc. [20] :
Potential intervenors may seek to intervene as added parties or as a "friend of the court". Typically, the applicant in a motion for intervention seeks to be added as a "friend of the court" on the basis that, while not directly involved in the matter in dispute, it does have an interest and expertise in the subject area so that it can "make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties" [21] Most of the jurisprudence has dealt with applications for intervenor status from the perspective of the "friend of the court". Because of the specific criteria set out in Rule 13.01, applications to be added as parties are less common. However, in my view, if a proposed intervenor meets one or more of the criteria to be added as a party as set out in Rule 13.01 (1), this factor must be added to the considerations set out in Peel (supra) in determining whether it would be fair and just to add the intervenor as a party to the proceedings. Certainly, a proposed intervenor that meets one of these criteria has a more "immediate interest" in the particular proceedings than the typical "friend of the court". [22]
[23] As the Cree Nation of Eeyou Istchee sees it, if legal argument as to the meaning and impact of Treaty #9 and not the establishment of aboriginal title or rights is the contribution to be made and could assist the court, then intervention as “a friend of the court” is the measure of participation that is called for. In any case, should the Court grant intervenor status to the Nishnawbe Aski Nation, the Cree Nation of Eeyou Istchee seeks to limit the role it could play and activities it could take part in.
[24] I raise again the complication of dealing with this as a multi-lateral as opposed to a bi-lateral problem, the willingness of the parties to do so and my concern as to how the process can be structured to fairly and with appropriate expedition reach its intended end. [23] This concern comes to the fore when the roles the two prospective intervenors would play are accounted for. After some argument, debate and discussion each of the two prospective intervenors and the plaintiff agreed that it is not possible, at this early stage, to realistically or finally define those parts of the proceeding in which each of the intervenors would have a substantive interest and could make a meaningful contribution. This understanding would evolve. There would be no prejudice to the bringing of further motions to clarify any disagreements or complications that appeared in the future. Over time the issues will be defined and the roles identified.
[25] To be clear this is not a tweaking of issues here and there. These disagreements are fundamental to the breadth of the case. I provide an example. Counsel for the Cree Nation of Eeyou Istchee wants the Moose Cree First Nation and, if it is permitted to intervene, the Nishnawbe Aski Nation to be limited in their ability to take part. The Moose Cree First Nation should be restricted to their immediate interest, understood by the Cree Nation of Eeyou Istchee to be a territorial claim to part of the lands in dispute. The Moose Cree First Nation would have no interest in and no contribution to make to any allegation that the rights of the Cree Nation of Eeyou Istchee had been breached or the damages they seek. This would be so even if the breach involved land on which any rights are shared and joint between them.
[26] As for the Nishnawbe Aski Nation, the Cree Nation of Eeyou Istchee says its participation should be “limited to the trial stage”. It “should not be permitted to adduce evidence at the trial”, and its oral submissions should be limited the interpretation of Treaty #9. [24] There was a further limitation. The interpretation would have to be in respect of territorial claims and nothing else. None of the understandings of its members as to the activity or lack of activity by the Cree Nation of Eeyou Istchee on the lands in issue could be called by the Nishnawbe Aski Nation or any explanation provided as to how they came to be signatories of Treaty #9 and the effect that the treaty may have had.
[27] For their part, both of the prospective intervenors submit there should be no limitations on their participation. In the normal course the evidence will become known, the issues more readily defined and the appropriate roles worked out. The court is to be assured by the premise that no party will want to take on an issue in which they have no interest or to take up time and other resources when they have nothing to gain and no contribution to make. The problem with this approach is that it is open ended. There is no practical limit. To pick up a well-known allusion from the mythology of an unrelated culture, once open in this way it would be difficult to put the genie allowing participation back in the bottle. It would not be easy to limit parties once they have entered into the arena of some issue or another. Nonetheless, I am told again this could be ordered without prejudice to motions seeking clarification later in the process.
[28] It is a conundrum. Do we start narrow and allow issues to broaden out as we proceed and they become clearer? Should we start wide open and look to put in limits when the issues are more precisely defined? This is a land claim. It speaks to our effort to find reconciliation. In this situation not only is the court being asked to resolve a dispute between First Nations and the Crown but, at the same time to resolve internecine (“mutually destructive”) disagreements between First Nations. The problem is not made easier by the failure of the two levels of government which are, after all, the defendants in the action and a main player in our effort to find reconciliation, to make any contribution to how it should be resolved.
[29] I am told by Counsel for the Nishnawbe Aski Nation that I should not approach this from the extremes but from the perspective of the particular context and circumstances.
[30] With this in mind, I make the following orders:
Pursuant to rule 5.03 of the Rules of Civil Procedure, the Moose Cree First Nation is added as a necessary party without condition.
In coming to the determination that there are to be no conditions imposed on the Moose Cree First Nation I do not accept and do not rely on the proposition that under rule 5.03 I have no jurisdiction to do so. Rather, I note that as a party the Moose Cree First Nation will have to file a pleading. In doing so it will be required to identify the issues of concern to it. The Cree Nation of Eeyou Istchee will, in the normal course, be free to challenge that pleading.
As a party the Moose Cree First Nation will be governed by the same rules and rights of participation accorded to any other party.
There is no reason why the benefit of obtaining an order for costs or the risk of having to pay costs to others should be any different for the Moose Cree First Nation than it would be for any typical party in any typical action.
As for the complications this may cause the Cree Nation of Eeyou Istchee, I say only that I accept the proposition that it cannot have considered and brought this action without having realized that it would be seen by others as treading on rights those others thought they had established. The Cree Nation of Eeyou Istchee should have expected that those other First Nation communities and interests would feel compelled to respond.
Pursuant to rule 13.02 of the Rules of Civil Procedure, the Nishnawbe Aski Nation is added as a friend of the court.
It is clear that the court will need assistance. As matters stand there is only one party before the court making a territorial claim contrary to the claims being made by the Cree Nation of Eeyou Istchee. Reconciliation as explained by the Summary of the Final Report of the Truth and Reconciliation Commission of Canada and quoted at the beginning of this Endorsement (see para. [2] above and fn. 1 herein) places a broader responsibility on the parties and the court than simply accepting what is provided. It would not be consistent with the goal of reconciliation or that broader responsibility to cede even a shared interest in land to the Cree Nation of Eeyou Istchee only because no one else is present. What if there are others who, like the Moose Cree First Nation believe they have an exclusive right to use and occupy some portion of the land in question. The possibility has been raised that seven of the members of the Nishnawbe Aski Nation could make such claims. Clearly it would be better if such interests were directly represented. As it is they are not. It maybe that there are general considerations that apply across the area as a result of Treaty #9, its words, the application of the Honour of the Crown to those words or some other aspect of the context of its preparation.
On the other hand, taking the Nishnawbe Aski Nation in its own right, I am unprepared to find that any of the factors outlined as requirements for intervention under r. 13.01(1) have been demonstrated. The Nishnawbe Aski Nation has no direct or immediate interest in the substance of the claim that stands apart from or independent of the interests of its members. I repeat, it would seem that they have that interest whereas it does not (r. 13.01(1)(a)). Without that immediate interest I can see no adverse effect on the Nishnawbe Aski Nation separate from the impact on the individual members (r. 13.01(1)(b)). Any common question of law or fact would face the same concern. They are common to the individual members of the Nishnawbe Aski Nation and to the Cree Nation of Eeyou Istchee (r. 13.01(1)(c)). The direct involvement or immediate interest referred to by the Court of Appeal in Canada Post Corp. v. Kelly Mail Canada Inc. (see para. [22] above and fn. 20) as being required to intervene as an added party is not present.
In this case, there will have to be conditions. The Nishnawbe Nation does not propose to file any pleading or provide any other demonstration of the issues of concern to it or to explain the position it takes. It wants a free hand to do as it choses without any constraint imposed by the process. In this regard I add the orders that follow.
The Nishnawbe Aski Nation shall be entitled to notice of, and may attend, all court appearances, examinations for discovery and cross-examinations on affidavits, but shall not be entitled to participate in any pre-trial matters, except upon consent of all parties or with leave of the Court.
The Nishnawbe Aski Nation shall receive electronic copies of all pleadings, motions, submissions, list of documents and other documents filed by the parties and obtain copies of transcripts and discovery documents in like manner to all of the other parties.
The Nishnawbe Aski Nation shall not be permitted to call viva voce evidence, examine or cross-examine witnesses during the trial of this action, file expert reports, conduct examinations for discovery or cross-examinations on affidavits, or supplement the evidentiary record in any way except with the consent of all parties or with leave of the court.
The Nishnawbe Aski Nation shall not be permitted to raise new issues except with the consent of all parties or with the leave of court.
Subject to any further direction that may be provided by the trial judge, or, if appropriate, the case management judge the Nishnawbe Aski Nation shall be entitled to participate in the trial by filing a written argument and presenting oral argument as shall be permitted by the trial judge, or, if appropriate, the case management judge.
The Nishnawbe Aski Nation shall bear its own costs in like manner to all of the other parties and, like them, shall be free to bring any motion for costs and may be vulnerable to a cost award in favour of other parties as appropriate at the end of the trial or any applicable motion or as the court is prepared to consider. The consideration of such motion for costs and those seeking costs from the Nishnawbe Aski Nation shall include the role, responsibilities and actions of the Nishnawbe Aski Nation as a friend of the court.
[31] Finally, I remind the parties that the court has its own responsibilities and concerns. It may be that in claims such as this the court must recognize the special place First Nations hold in our governmental and constitutional framework. They are nations taking proceedings against the Canadian nation. Nonetheless, when parties bring these matters to court it is incumbent on them to recognize that the court has its own procedures, rules and processes which must be respected. It is for the court to control its process and to do what it can to ensure that the proceedings brought before it are fair and that it has the information it requires to render a proper decision. Case management is a tool used by the court to assist it and the parties in fulfilling these goals. With this in mind, and in furtherance of my responsibilities as the case management judge, I direct counsel for the Nishnawbe Aski Nation to approach each of the seven members of his client who may have individual territorial claims and are neither represented nor a beneficiary of the case of the plaintiff and explain to them the concerns that have been expressed by the court and obtain from them advice, to the extent they are prepared to provide it, as to their intentions in respect of this proceeding.
[32] In the same vein, I am advised that the next step in the process will be a motion brought on behalf of the Attorney General of Canada seeking to strike out the Statement of Claim as an abuse of process. The procedure leading to the hearing of such a motion and the date for that hearing should be set and scheduled as soon as possible. With this in mind I instruct all parties to appear at a case conference on Wednesday, June 21, 2017 at 8:00 am. As requested by the court, at the conclusion of the hearing of the two motions to intervene, I have been advised that counsel representing all parties will be available. Counsel are to appear on that day and at that time, at Room 170, 361 University Avenue (Judges’ Administration).
[33] I have heard no submissions as to costs of these motions. In the event that the parties are unable to agree I may be spoken to.
Lederer, J. Date: June 15, 2017.